Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210618 DOCKET: M52153 (M51847) & M52369 (M51847)

Fairburn A.C.J.O., Harvison Young and Jamal JJ.A.

BETWEEN

The Regional Municipality of Halton Plaintiff (Responding Party)

and

F. Greco & Sons Limited o/a Greco Construction, Michael Greco, John Frank Greco, John Paul Greco, Sirron Systems Incorporated, Sirron Systems Inc., Sirron Group International, Sirron Electrical Contracting Corporation, David Allan Norris, Meehan’s industrial Maintenance Ltd., Patrick Vincent Meehan, Jason Matthew Mote, Giulio (Julio) Cerelli, Canian Precision Machine Shop Limited, Wahan Aghaian, Eli Ishkanian and Lisa Snowball Defendants (Moving Party, Lisa Snowball)

Counsel: Paul Starkman and Calvin Zhang, for the moving party, Lisa Snowball Talia Gordner, for the responding party

Heard: June 10, 2021 by video conference

Reasons for Decision

[1] On September 28, 2020, Lisa Snowball served a Notice of Motion for leave to appeal, seeking to appeal from the order of the Divisional Court, dated September 18, 2020, in which the Divisional Court refused leave to appeal from the order of Justice Michael R. Gibson of the Superior Court of Justice, dated April 22, 2020: The Regional Municipality of Halton v. F. Greco & Sons Limited, 2020 ONSC 5571.

[2] We have two motions before us: the Regional Municipality of Halton’s motion to strike Ms. Snowball’s Notice of Motion for leave to appeal pursuant to r. 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; and Ms. Snowball’s motion to adduce fresh evidence on her motion for leave to appeal. The motion to strike and the motion to file fresh evidence were originally brought before a single judge of this court: Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 322. As a single judge of this court does not have jurisdiction to strike a Notice of Motion for leave to appeal and to decide a motion to receive fresh evidence, the matter was set down before this panel: Rules of Civil Procedure, rr. 61.16(2), 61.16(2.2).

[3] We have considered the applicant’s fresh evidence, which includes a sentencing decision of Justice Chozik, dated January 12, 2021. That fresh evidence changes nothing in terms of the merits of the leave to appeal application.

[4] There is no merit to Ms. Snowball’s motion for leave to appeal from the Divisional Court’s order refusing leave to appeal and it is therefore frivolous. As a general rule, there is no ability to appeal from an order of an intermediate court refusing leave to appeal, unless the judge of that court “mistakenly declined jurisdiction”: Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 135 D.L.R. (4th) 471 (Ont. C.A.), at pp. 483-84; Denison Mines Limited v. Ontario Hydro (2001), 56 O.R. (3d) 181 (C.A.), at paras. 4-5, 8. The Divisional Court did not “mistakenly declin[e] jurisdiction” when it determined the leave motion. The Divisional Court was under no obligation to provide reasons for refusing leave to appeal: 2265535 Ontario Inc. v. Vijayant Sood, 2017 ONSC 4738 (Div. Ct.), at para. 1.

[5] Accordingly, the Regional Municipality of Halton’s motion to strike Ms. Snowball’s Notice of Motion for leave to appeal is granted. The motion to admit fresh evidence is denied.

[6] Costs will be paid to the Regional Municipality of Halton in the amount of $15,000, inclusive of disbursements and applicable taxes.

“Fairburn A.C.J.O.”

“A. Harvison Young J.A.”

“M. Jamal J.A.”